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United States v. Cabrera , 145 F. App'x 373 ( 2005 )


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  •                Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1890
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ CABRERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judges.
Robert L. Sheketoff on brief for appellant.
Michael J. Sullivan, United States Attorney, and Heidi E.
Brieger, Assistant United States Attorney, on brief for appellee.
June 14, 2005
Per Curiam.          This sentencing appeal raises three issues.
Each of them may be summarily dispatched.
First, the appellant claims that the district court
abused its discretion in refusing to hold an evidentiary hearing at
sentencing.       We do not agree:            evidentiary hearings at sentencing
are the exception, not the rule.                    A party seeking such a hearing
"must carry a formidable burden of persuasion."                           United States v.
McAndrews,
    12 F.3d 273
    , 280 (1st Cir. 1993).
In this case, the appellant could have put forth a
different    version        of       the   disputed    point       (drug     quantity)      by
affidavit.       He did not do so.            Given that omission, the court had
considerable      latitude           to    decide   that     the    appellant        had   not
satisfied his entry-level burden of showing that material facts
were genuinely in dispute.                  "A district court need not grant an
evidentiary hearing . . . merely because a defendant's hopes spring
eternal     or    because        a    defendant      wishes    to        mount   a   fishing
expedition."
    Id.
    The        second    issue       relates    to    the     district       court's
imposition       of     a   role-in-the-offense            enhancement.          See       USSG
§3B1.1(a).            The   appellant        charges    that       the    district     court
misapplied the guideline.
As we predicted in United States v. Graciani,
    61 F.3d 70
    ,
75 (1st Cir. 1995), role-in-the-offense inquiries are necessarily
fact-specific and battles over the propriety of enhancements "will
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almost always be won or lost in the district court."   So here:   the
record does not bear out the appellant's charge.
The sentencing transcript satisfies us that the court
understood the nature and purpose of the enhancement, correctly
delineated its contours,1 and applied it appropriately to the facts
as found. Since these findings of fact were not clearly erroneous,
see United States v. Cruz,
    120 F.3d 1
    , 3 (1st Cir. 1997) (en banc),
we uphold the enhancement.
The third, and final, issue devolves from the Supreme
Court's decision in United States v. Booker,
    125 S. Ct. 738
     (2005).
In Booker — a case decided after sentencing in this case had taken
place — the Court invalidated those provisions of the Sentencing
Reform Act that made the federal sentencing guidelines mandatory.
    Id. at 764-65
    .   We have since held that the error described in
Booker "is that the defendant's Guidelines sentence was imposed
under a mandatory system."     United States v. Antonakopoulos,
    399 F.3d 68
    , 75 (1st Cir. 2005).
We are dealing here with an unpreserved Booker error.
Nonetheless, we have held, in similar circumstances, that if a
defendant can show, "either in the existing record or by plausible
1
In a fruitless attempt to show that the district court
applied the wrong legal framework, the appellant cites our decision
in United States v. Coviello,
    225 F.3d 54
     (1st Cir. 2000). The
Coviello decision deals with mitigating role adjustments under a
differently worded guideline,
    id. at 67
    , and is, therefore,
inapposite.
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proffer," some "reasonable indication that the district judge might
well have reached a different [sentencing outcome] under advisory
guidelines," he is entitled to resentencing.                United States v.
Heldeman,
    402 F.3d 220
    , 224 (1st Cir. 2005).            One way to make this
showing (although certainly not the only way) is by reference to
what the sentencing judge said at the disposition hearing. See
    id.
    In this case, the sentencing judge's comments furnish a
basis for finding a reasonable probability that, if asked to
sentence anew under a purely advisory regime, he would impose a
more lenient sentence.       The government, to its credit, concedes as
much.   Consequently, resentencing is in order.
We   need   go    no   further.   We    vacate      the   appellant's
sentence and    remand      for   resentencing    in   light    of   Booker and
Antonakopoulos.    We intimate no view as to what sentence should be
imposed on remand.
So Ordered.
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